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ELCPartially AllowedELC Case No. 138 of 2011· [2018] KEELC 4769 (KLR)

Attorney General & another v National Museums of Kenya & another [2018] KEELC 4769 (KLR)

Environment and Land Court
25 January 2018
AOA. Omollo
772 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court protected the Mnarani ruins by shutting down two fish ponds, but refused to rule on encroachment because a key landowner wasn't joined to the case.

What this practically means

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Executive summary

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The Attorney General and the National Museums of Kenya sued Florence Mwarumba and Jacob Sorei by plaint dated 26th May 2011, seeking a permanent injunction restraining interference with the Mnarani ruins monument on parcel Kilifi/Group V/452, a mandatory injunction under section 111(1) of the Environmental Management and Co-ordination Act to restore the property, general and exemplary damages for destroyed vegetation and habitat, and costs. The defendants filed no defence; they only filed a replying affidavit asserting they were tenants of the Wakf owning adjacent plot V/7 and that the 2nd plaintiff's allotment was irregular, together with an application for stay of execution that was dismissed for want of prosecution. At formal proof on 26th September 2017, the plaintiffs' surveyor testified that the ruins were gazetted in 1935 and that a survey confirmed encroachment by the defendants, including fish ponds within about 10m of the heritage site. The court held that since the defendants claimed only to be tenants of the Wakf, and the plaintiffs had not joined the Wakf's trustees or the Wakf Commissioners of Kenya, it could not determine the boundary between plots V/452 and V/7 or find encroachment. It therefore declined to grant the mandatory injunction or damages. However, it permanently enjoined the defendants from using or operating ponds nos. 4 and 5 said to be within the heritage land, directed that the ponds on the separate title not be re-opened without a cultural heritage impact assessment, and ordered each party to bear their own costs.

Key legal issues

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01

Whether encroachment on the Mnarani ruins monument could be established

Holding

The court declined to determine boundary or encroachment due to non-joinder of the Wakf and its trustees, who own the adjacent plot V/7 of which the defendants claimed to be tenants

Reasoning

The defendants disclaimed ownership, stating they were tenants of the Wakf of Khadija Binti Suleiman Bin Hemed, owner of plot V/7. The plaintiffs, aware of this, did not join the trustees or the Wakf Commissioners of Kenya. Without those necessary parties, the court could not adjudicate the boundary between V/452 and V/7 or any encroachment.

p. 2
02

Whether the defendants' fish pond activities could be restrained

Holding

Permanent injunction issued in respect of ponds nos. 4 and 5 said to be within the heritage land; ponds on the separate title may only be re-opened after a cultural heritage impact assessment

Reasoning

The survey report placed some ponds within 10m of the Mnarani Heritage site, whereas developments within 100m of a national monument require a cultural heritage impact assessment. Since ponds nos. 4 and 5 were said to be within the heritage land, a permanent injunction issued against their use and operation, and the suit succeeded in terms of prayer (1).

p. 2

Legal principles established

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  • A court cannot determine the boundary between plots or find encroachment where the registered owner of the adjacent plot (here, the Wakf) and its trustees/commissioners have not been joined to the suit
  • Development within a radius of 100m of a national monument requires a cultural heritage impact assessment before approval

Court orders

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  1. 1.Permanent injunction directed against the defendants and/or their agents/employees to forthwith stop the use and operation of fish ponds nos. 4 & 5 said to be within the heritage land
  2. 2.The 2nd plaintiff to serve the title owner of plot V/7 with notice for a cultural heritage impact assessment to be conducted before the ponds (no longer in use) are re-opened for utilization
  3. 3.Suit succeeds in terms of prayer (1) of the plaint
  4. 4.Each party to bear their respective costs of the suit

Authorities

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Legislation

  • Environmental Management and Co-ordination Actsection 111(1)
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land and the environment (Environment and Land Court Act); suit instituted by plaint

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Attorney General & another v National Museums of Kenya & another [2018] KEELC 4769 (KLR)", Case Analysis (2018). ELC Case No. 138 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4769/eng@2018-01-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.